State v. Gentry

• Decision Date: 14 December 1932
• Docket Number: 31678
• Citation: 55 S.W.2d 941
• Parties: STATE v. GENTRY
• Court: Missouri Supreme Court

55 S.W.2d 941

STATE v. GENTRY

No. 31678

Supreme Court of Missouri, Second Division

December 14, 1932

Alcid Bowers, of St. Joseph, for appellant.

Stratton Shartel, Atty. Gen., and Edward G. Robison, Asst. Atty. Gen., for the State.

OPINION

WESTHUES, C.

Appellant was convicted of grand larceny in the circuit court of Carroll county, Mo. The verdict of the jury fixed defendant's punishment at two years' imprisonment in the penitentiary. Sentence was pronounced after defendant's motion for a new trial had been overruled. From this sentence defendant was granted an appeal to this court.

Respondent contends that only the record proper is before us for review, for the reason that the appellant did not except to the court's action in overruling the motion for a new trial. In absence of such an exception, the errors complained of in the motion for a new trial are not preserved for our consideration. State v. Arrowood (Mo. Sup.) 11 S.W.2d 1015, and cases there cited. The contention of respondent must be sustained. The purported bill of exceptions, filed in this case, does not show that appellant excepted to the ruling of the court in denying a new trial.

The record proper discloses that the information charges the defendant with the theft of five hogs of the value of $ 76, on the 8th day of April, 1931, in Clay county, Mo. On defendant's application for a change of venue, the case was transferred to Carroll county. The information is sufficient in both form and substance. The verdict is in proper form. It reads: 'We the jury find the defendant guilty and assess his punishment at imprisonment in the state penitentiary for a term of two years. E. A. Dusenberry, Foreman.' The information was in one count, and charged but one offense. This being true, the verdict was sufficient. State v. Martin, 230 Mo. loc. cit. 691, 132 S.W. 595, loc. cit. 599 (3). Defendant waived formal arraignment and entered a plea of not guilty. Allocution was duly accorded prior to sentence.

No error appearing in the record proper, the judgment of the circuit court must be affirmed. It is so ordered.

COOLEY and FITZSIMMONS, CC., concur.

Per Curiam. The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.

All concur.